Supreme Court – Day 1


Brexit:  Article 50 – A  Decision for Parliament or for The Executive ? – UK Supreme Court

Judges of the Supreme Court of the UK

Today (Monday) was the first hearing day for the  Government’s Appeal to the UK Supreme Court from the decision of the Divisional Court which had held that the service of an Article 50 Notice to the EU Commission had to be authorised by Parliament.   However, the day actually began with some interesting developments about what will happen in Parliament later in the week.


Prelude to the 1st Day

Keir Starmer QC, the shadow Secretary of State for Exiting the European Union, has explained why he had  put down a motion for an Opposition Day debate on Wednesday.  He explained his reasoning in the Guardian: “Tories must publish Brexit plan or there’s zero chance of getting a good deal – It’s time to halt this destructive uncertainty over quitting the EU. MPs should support Labour’s Brexit motion, to be debated this week”.

And the Guardian published this:  “Tory MPs may back Labour call for disclosure of Brexit plan – Anna Soubry says at least 20 colleagues could support motion urging government to publish plan before triggering article 50”.    The BBC put the numbers of Conservative MP’s  who would support the motion rather higher and, of course, the Conservative Majority is only 12.

The Telegraph also had this in its Premium content: “The Brexit Judgment: Theresa May facing Tory rebellion over Article 50 plan this week as Government takes fight to Supreme Court

The lawyers attended at the Supreme Court and, since the Government is the Appellant,  they addressed the Court first.  The Supreme Court Blog has posted a summary account of the first hearing day  – Click here to read the blog. A draft transcript of the day’s proceedings is also available on line – Click here for the transcript.

The Government’s legal team was (at least theoretically) led by the Attorney General, the Rt Hon Jeremy Wright, QC, PC, MP.   In reality, the lead Counsel for the Government is James Eadie QC.

According to the Independent’s report of today’s proceedings:

“Mr Wright has also courted controversy today, with a warning to judges that they should steer clear of getting involved in political decisions. A paper submitted to the Supreme Court in advance of today’s case sets out the Government’s argument – that the original High Court ruling implies Parliament would be able to ‘micromanage’ negotiations to leave the European Union.  And it urges the Supreme Court judges not to “stray” into areas of political judgment. Mr Wright warns: “The Court is being invited by the Lord Advocate and the Counsel General to stray into areas of political judgment rather than legal adjudication. The Court should resist that invitation, particularly where the underlying issue is one of considerable political sensitivity.”

Mr Wright practice before his appointment was principally at the criminal bar.  That is the sort of submission which might be appropriate for a bench of lay justices, but it was hardly appropriate for the Supreme Court.

We shall see what tomorrow brings.

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